SAN FRANCISCO – Federal prosecutors said today they would retry marijuana grower Ed Rosenthal on cultivation charges, even after a federal judge urged them to drop the case and chastised the government for lodging charges solely to punish the self-proclaimed “guru of ganja.”

U.S. District Court Judge Charles Breyer demanded to know who in the Department of Justice made the decision to continue pursuing Rosenthal, who had his original conviction overturned last year.

Rosenthal can’t be sentenced to prison even if he is convicted because the 9th U.S. Circuit Court of Appeals upheld the one-day prison sentence ordered by Breyer in 2003.

Newly appointed U.S. Attorney Scott Schools made the decision, said Assistant U.S. Attorney George Bevan, but he was not sure if Department of Justice officials in Washington were involved.

The judge said the government’s position to go forward left him no choice but to hold a trial, which he scheduled for May 14.

“This isn’t a criminal case, this is a political case,” said Rosenthal, who appeared in court dressed in a blue wizard’s robe with a golden marijuana leaf emblazoned over the breast. “I may as well get my money’s worth and have a trial.”

Rosenthal has written numerous books with titles such as “The Big Book of Buds” and “Ask Ed: Marijuana Law. Don’t Get Busted.” He also wrote an “Ask Ed” column for High Times magazine.

Rosenthal was convicted of three felonies in 2003 for growing hundreds of plants for a city of Oakland medical marijuana program. Breyer sentenced him to one day in prison on grounds that Rosenthal reasonably believed he was immune from prosecution because he was acting on behalf of Oakland city officials.

A federal appeals court overturned his conviction last year because of misconduct by a juror who consulted an attorney on how to decide the case. The appeals court also ruled against the government and said that the one-day prison sentence was fair, which means Rosenthal doesn’t face any more prison time even if he is convicted again.

When federal prosecutors indicted Rosenthal again on three growing charges in October over the same marijuana operation, they also added four counts of money laundering and five counts of filing false tax returns.

But Breyer tossed out those additional charges last month, saying they were solely to punish Rosenthal for winning his appeal to overturn his initial conviction. Prosecutors said Friday they wouldn’t appeal the judge’s decision to toss out those charges.

On Friday, defense lawyer Shari Lynn Greenberger said she will ask the judge to award Rosenthal’s legal team its fees for fighting the money laundering and tax charges. Federal law allows defendants to seek attorneys fees if they’ve been wrongly charged by vindictive prosecutors.

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